The Gillette Companyv.Zond, LLC

Patent Trial and Appeal Board

Oct 1, 2015

10065739 (P.T.A.B. Oct. 1, 2015)

Trials@uspto.gov Paper 48
571-272-7822 Entered: October 1, 2015

UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________

THE GILLETTE COMPANY, FUJITSU SEMICONDUCTOR LIMITED,
and FUJITSU SEMICONDUCTOR AMERICA, INC.
Petitioners,
v.

ZOND, LLC,
Patent Owner.
____________

Case IPR2014-00580
1

Patent 6,896,773 B2
____________

Before KEVIN F. TURNER, DEBRA K. STEPHENS, JONI Y. CHANG,
SUSAN L.C. MITCHELL, and JENNIFER MEYER CHAGNON,
Administrative Patent Judges.

Opinion for the Board filed by Administrative Patent Judge Chang.
Opinion Dissenting-in-Part filed by Administrative Patent Judge Stephens.

CHANG, Administrative Patent Judge.

FINAL WRITTEN DECISION
Inter Partes Review
35 U.S.C. § 318(a) and 37 C.F.R. § 42.73

1
Case IPR2014-01479 has been joined with the instant inter partes review.
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I. INTRODUCTION
The Gillette Company (“Gillette”) filed a revised Petition requesting
an inter partes review of claims 1–20 and 34–39 of U.S. Patent
No. 6,896,773 B2 (Ex. 1001, “the ’773 patent”). Paper 7 (“Pet.”). Patent
Owner Zond, LLC (“Zond”) filed a Preliminary Response. Paper 10
(“Prelim. Resp.”). Upon consideration of the Petition and Preliminary
Response, we instituted the instant trial on October 10, 2014, pursuant to
35 U.S.C. § 314. Paper 11 (“Dec.”).
Subsequent to institution, we granted the Motion for Joinder filed by
Taiwan Semiconductor Manufacturing Company, Ltd., TSMC North
America Corp. (collectively, “TSMC”), Fujitsu Semiconductor Limited, and
Fujitsu Semiconductor America, Inc. (collectively, “Fujitsu”), joining Case
IPR2014-01479 with the instant trial (Paper 20), and also granted a Joint
Motion to Terminate with respect to TSMC (Paper 37).
2
Zond filed a
Response (Paper 32 (“PO Resp.”)), and Gillette filed a Reply (Paper 39
(“Reply”)). Oral hearing
3
was held on June 16, 2015, and a transcript of the
hearing was entered into the record. Paper 47 (“Tr.”).
We have jurisdiction under 35 U.S.C. § 6(c). This Final Written
Decision is entered pursuant to 35 U.S.C. § 318(a) and 37 C.F.R. § 42.73.
For the reasons set forth below, we determine that Gillette has shown, by a
preponderance of the evidence, that claims 1–20 and 34–39 of the ’773
patent are unpatentable under 35 U.S.C. § 103(a).

2
In this Decision, we refer to The Gillette Company (the original Petitioner)
and Fujitsu as “Gillette,” for efficiency.
3
The oral arguments for the instant review and Case IPR2014-00726 were
consolidated.
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A. Related District Court Proceedings
Gillette indicates the ’773 patent was asserted in Zond, LLC v. The
Gillette Co., No.1:13-CV-11567-DJC (D. Mass.), and identifies other
proceedings in which Zond asserted the claims of the ’773 patent. Pet. 1.

B. The ’773 Patent
The ’773 patent relates to a method and an apparatus for
high-deposition sputtering. Ex. 1001, Abs. At the time of the invention,
sputtering was a well-known technique for depositing films on
semiconductor substrates. Id. at 1:5–6. According to the ’773 patent,
conventional magnetron sputtering systems deposit films with relatively low
uniformity. Id. at 1:53–54. Although film uniformity can be increased by
mechanically moving the substrate and/or magnetron, the ’773 patent
indicates such systems are relatively complex and expensive to implement.
Id. at 1:54–57. The ’773 patent further states that conventional magnetron
sputtering systems also have relatively poor target utilization (how
uniformly the target material erodes during sputtering) and a relatively low
deposition rate (the amount of material deposited on the substrate per unit of
time). Id. at 1:57–66. To address these issues, the ’773 patent discloses a
plasma sputtering apparatus that creates a strongly-ionized plasma from a
weakly-ionized plasma using a pulsed power supply. Id. at Abs. According
to the ’773 patent, “[t]he strongly-ionized plasma includes a first plurality of
ions that impact the sputtering target to generate sufficient thermal energy in
the sputtering target to cause a sputtering yield of the sputtering target to be
non-linearly related to a temperature of the sputtering target.” Id.
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C. Illustrative Claim
Of the challenged claims, claims 1 and 34 are independent. Claims 2–
20 and 35–39 depend, directly or indirectly, from claims 1 and 34. All of
the claims at issue here are directed to a sputtering source. Claim 1,
reproduced below, is illustrative:
1. A sputtering source comprising:
a cathode assembly that is positioned adjacent to an anode, the
cathode assembly including a sputtering target;
an ionization source that generates a weakly-ionized plasma
from a feed gas proximate to the anode and the cathode
assembly; and
a power supply that generates a voltage pulse between the
anode and the cathode assembly that creates a strongly-ionized
plasma from the weakly-ionized plasma, an amplitude and a
rise time of the voltage pulse being chosen to increase a density
of ions in the strongly-ionized plasma enough to generate
sufficient thermal energy in the sputtering target to cause a
sputtering yield to be non-linearly related to a temperature of
the sputtering target.
Ex. 1001, 21:8–24.

D. Prior Art Relied Upon
Gillette relies upon the following prior art references:
Wang US 6,413,382 B1 July 2, 2002 (Ex. 1003)
Fu US 6,306,265 B1 Oct. 23, 2001 (Ex. 1007)
Lantsman US 6,190,512 B1 Feb. 20, 2001 (Ex. 1008)
Kawamata US 5,958,155 Sept. 28, 1999 (Ex. 1009)
Chiang US 6,398,929 B1 June 4, 2002 (Ex. 1011)

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D.V. Mozgrin, et al., High-Current Low-Pressure Quasi-Stationary
Discharge in a Magnetic Field: Experimental Research, 21 PLASMA
PHYSICS REPORTS 400–409 (1995) (Ex. 1005) (“Mozgrin”).

D.V. Mozgrin, High-Current Low-Pressure Quasi-Stationary Discharge in a
Magnetic Field: Experimental Research, Thesis at Moscow Engineering
Physics Institute (1994) (Ex. 1015) (“Mozgrin Thesis”).
4

Interaction of Low-Temperature Plasma With Condensed Matter, Gas, and
Electromagnetic Field in (III) ENCYCLOPEDIA OF LOW-TEMPERATURE
PLASMA (V.E. Fortov ed., 2000) (Ex. 1004) (“Fortov”).
5

A.A. Kudryavtsev and V.N. Skrebov, Ionization Relaxation in a Plasma
Produced by a Pulsed Inert-Gas Discharge, 28 SOV. PHYS. TECH. PHYS. 30–
35 (Jan. 1983) (Ex. 1006) (“Kudryavtsev”).

Yuri P. Raizer, GAS DISCHARGE PHYSICS, 1–35, Springer 1997 (Ex. 1012)
(“Raizer”).

W. Ehrenberg and D.J. Gibbons, ELECTRON BOMBARDMENT INDUCED
CONDUCTIVITY AND ITS APPLICATIONS, 80–122, (1981) (Ex. 1026)
(“Ehrenberg”).

4
Mozgrin Thesis is a Russian-language reference (Ex. 1016). The citations
to Mozgrin Thesis are to the certified English-language translation submitted
by Gillette (Ex. 1015).
5
Fortov is a Russian-language reference (Ex. 1010). The citations to Fortov
are to the certified English-language translation submitted by Gillette
(Ex. 1004).
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E. Grounds of Unpatentability
We instituted the instant trial based on the following grounds of
unpatentability (Dec. 46, Paper 19, 2):
Claim(s) Basis References
1, 6, and 8–20 § 103 Mozgrin and Fortov
5 § 103 Mozgrin, Fortov, and Kawamata
3, 4, and 34–39 § 103 Mozgrin, Fortov, and Lantsman
7 § 103 Mozgrin, Fortov, and Kudryavtsev
2 § 103 Mozgrin, Fortov, Mozgrin Thesis, and Raizer

II. ANALYSIS
A. Claim Construction
In an inter partes review, claim terms in an unexpired patent are given
their broadest reasonable construction in light of the specification of the
patent in which they appear. 37 C.F.R. § 42.100(b); see also In re Cuozzo
Speed Techs., LLC, 793 F.3d 1268, 1275–79 (Fed. Cir. 2015) (“Congress
implicitly approved the broadest reasonable interpretation standard in
enacting the AIA,”
6
and “the standard was properly adopted by PTO
regulation.”). Claim terms are given their ordinary and customary meaning
as would be understood by one of ordinary skill in the art in the context of
the entire disclosure. In re Translogic Tech., Inc., 504 F.3d 1249, 1257
(Fed. Cir. 2007). An inventor may rebut that presumption by providing a

6
The Leahy-Smith America Invents Act, Pub. L. No. 11229, 125 Stat. 284
(2011) (“AIA”).
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definition of the term in the specification with “reasonable clarity,
deliberateness, and precision.” In re Paulsen, 30 F.3d 1475, 1480 (Fed. Cir.
1994). In the absence of such a definition, limitations are not to be read
from the specification into the claims. In re Van Geuns, 988 F.2d 1181,
1184 (Fed. Cir. 1993).
“weakly-ionized plasma” and “strongly-ionized plasma”
Claim 1 recites “a power supply that generates a voltage pulse
between the anode and the cathode assembly that creates a strongly-ionized
plasma from the weakly-ionized plasma.” Ex. 1001, 21:15–17 (emphases
added). During the pre-trial stage of this proceeding, the parties also
submitted their constructions for the claim terms “a weakly-ionized plasma”
and “a strongly-ionized plasma.” Pet. 4–5; Prelim. Resp. 19. In our
Decision on Institution, we adopted Zond’s proposed constructions, in light
of the Specification, as the broadest reasonable interpretations. Dec. 11–12;
see, e.g., Ex. 1001, 13:31–33 (“strongly-ionized plasma 268 having a large
ion density being formed”).
Upon review of the parties’ explanations and supporting evidence
before us, we discern no reason to modify our claim constructions set forth
in the Decision on Institution with respect to these claim terms. Dec. 11–12.
Therefore, for purposes of this Final Written Decision, we construe, in light
of the Specification of the ’773 patent, the claim term “a weakly-ionized
plasma” as “a plasma with a relatively low peak density of ions,” and the
claim term “a strongly-ionized plasma” as “a plasma with a relatively high
peak density of ions.”
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B. Principles of Law
A patent claim is unpatentable under 35 U.S.C. § 103(a) if the
differences between the claimed subject matter and the prior art are such that
the subject matter, as a whole, would have been obvious at the time the
invention was made to a person having ordinary skill in the art to which said
subject matter pertains. KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398, 406
(2007). The question of obviousness is resolved on the basis of underlying
factual determinations including: (1) the scope and content of the prior art;
(2) any differences between the claimed subject matter and the prior art;
(3) the level of ordinary skill in the art; and (4) objective evidence of
nonobviousness. Graham v. John Deere Co., 383 U.S. 1, 17–18 (1966). In
that regard, an obviousness analysis “need not seek out precise teachings
directed to the specific subject matter of the challenged claim, for a court
can take account of the inferences and creative steps that a person of
ordinary skill in the art would employ.” KSR, 550 U.S. at 418; Translogic,
504 F.3d at 1262. The level of ordinary skill in the art is reflected by the
prior art of record. See Okajima v. Bourdeau, 261 F.3d 1350, 1355 (Fed.
Cir. 2001); In re GPAC Inc., 57 F.3d 1573, 1579 (Fed. Cir. 1995); In re
Oelrich, 579 F.2d 86, 91 (CCPA 1978).
We analyze the asserted grounds of unpatentability in accordance with
the above-stated principles.

C. Obviousness over Mozgrin and Fortov
Gillette asserts that claims 1, 6, and 8–20 are unpatentable under
35 U.S.C. § 103(a) as obvious over the combination of Mozgrin and Fortov.
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Pet. 13–25. In its Petition, Gillette explains how the combination of the
prior art technical disclosures collectively meets each claim limitation and
articulates a rationale to combining the teachings. Id. Gillette also
submitted a Declaration of Mr. Richard DeVito (Ex. 1005) to support its
Petition, and a Declaration of Dr. John C. Bravman (Ex. 1028) to support its
Reply to Zond’s Patent Owner Response.
Zond responds that the combination of Mozgrin and Fortov does not
disclose every claim element. PO Resp. 34–53. Zond also argues that there
is insufficient reason to combine the technical disclosures of Mozgrin and
Fortov. Id. at 14–34. To support its contentions, Zond proffers a
Declaration of Dr. Larry D. Hartsough (Ex. 2005).
We have reviewed the entire record before us, including the parties’
explanations and supporting evidence presented during this trial. We begin
our discussion with a brief summary of Mozgrin and Fortov, and then we
address the parties’ contentions in turn.
Mozgrin
Mozgrin discloses experimental research conducted on high-current
low-pressure quasi-stationary discharge in a magnetic field. Ex. 1002, 400,
Title. In Mozgrin, pulse or quasi-stationary regimes are discussed in light of
the need for greater discharge power and plasma density. Id. Mozgrin
discloses a planar magnetron plasma system having cathode 1, anode 2
adjacent and parallel to cathode 1, and magnetic system 3, as shown in
Figure 1(a) (reproduced below). Id. at 400–01. Mozgrin also discloses a
power supply unit that includes a pulsed discharge supply unit and a system
for pre-ionization. Id. at 401–02, Fig. 2. For pre-ionization, an initial
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plasma density is generated when the square voltage pulse is applied to the
gas. Id.
Figure 3(b) of Mozgrin is reproduced below:

Figure 3(b) of Mozgrin illustrates an oscillogram of voltage of the
quasi-stationary discharge. Id. at 402. In Figure 3(b), Part 1 represents the
voltage of the stationary discharge (pre-ionization stage); Part 2 displays the
square voltage pulse application to the gap (Part 2a), where the plasma
density grows and reaches its quasi-stationary value (Part 2b); and Part 3
displays the discharge current growing and attaining its quasi-stationary
value. Id. More specifically, the power supply generates a square voltage
with rise times of 5–60 µs and durations of as much as 1.5 ms. Id. at 401.
Mozgrin further discloses the current-voltage characteristic of the
quasi-stationary plasma discharge that has four different stable forms or
regimes: (1) pre-ionization stage (id. at 401–02); (2) high-current magnetron
discharge regime, in which the plasma density exceeds 2 x 10
13
cm
-3
,
appropriate for sputtering (id. at 402–04, 409); (3) high-current diffuse
discharge regime, in which the plasma density produces large-volume
uniform dense plasmas η1 ≈ 1.5 x 10
15
cm
-3
, appropriate for etching (id.); and
(4) arc discharge regime (id. at 402–04). Id. at 402–409, Figs. 3–7.
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Fortov
Fortov is a Russian-language encyclopedia of plasma physics.
Ex. 1004, 1. The cited portion of Fortov is directed to interaction of plasma
with condensed matter and, more particularly, to sputtering. Id. at 3–4.
Fortov discloses the non-linear relationship between the target temperature
and the sputtering yield Y above temperature T0. Id. at 16. According to
Fortov, Y is the coefficient of sputtering, “defined as the relation of the
number of sputtered atoms of a target to the number of bombarding ions
(atoms),” which “depends on the type of ions (its atomic number Zi and
mass Mi).” Id. at 6.
Figure VI.1.315 of Fortov is reproduced below.

Figure VI.1.315 of Fortov describes the sputtering coefficient of
copper (cuprum) being bombarded by ions of Ar
+
with the energy of 400 eV,
from the temperature: 1 –– electrolytic copper, 2 –– rolled copper, 3 ––
single crystal copper (cuprum monocrystal), facet (101). Id. at 9. According
to Fortov, at a temperature less than T1, coefficient Y is not actually
dependent on the temperature, and, at T ≈ T1, Y starts to grow rapidly,
concurrently with growth of temperature. Id. Fortov further explains
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temperature T1 is sometimes defined according to the empirical relation
T1 = .7 Tm where Tm is the melting temperature, though in some cases, e.g.,
for tin (stannum) T1 > Tm and T1 = U/40k (k is Boltzmann constant; U is the
energy of sublimation correlated to one atom). Id. at 7, 9. Temperature T1
depends on the type, energy, and density of ion flow. Id. at 9.
Ionization source
Gillette takes the position that Mozgrin in combination with Fortov
discloses a sputtering source comprising a cathode assembly that is
positioned adjacent to an anode, and “an ionization source that generates a
weakly-ionized plasma from a feed gas proximate to the anode and the
cathode assembly,” as recited in independent claims 1 and 34.
7
Pet. 13–19,
41. According to Gillette, Mozgrin discloses using a power supply to
generate a weakly-ionized plasma with density less than 10
12
ions/cm
3
from
the feed gas. Id. at 14–15 (citing Ex. 1002, 400–02, Figs. 1, 2, 6).
Figure 1 of Mozgrin is reproduced below.

Figure 1(a) of Mozgrin Figure 1(b) of Mozgrin

7
We include independent claim 34 in our analysis as to claim 1 here because
claim 34 includes all of the limitations of claim 1. Gillette relies upon the
same teachings of Mozgrin and Fortov, and Zond asserts the same
arguments, for these limitations of claim 34. See PO Resp. 35–43.
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Figure 1 of Mozgrin illustrates two types of systems: (1) a planar
magnetron system, as shown in Figure 1(a); and (2) a shaped-electrode
magnetron system, as shown in Figure 1(b). Ex. 1002, 401. Each system
comprises cathode 1, anode 2, and magnetic system 3. Id. Gillette points
out that Mozgrin’s magnetron systems generate a plasma from a feed gas,
such as argon and nitrogen, between and proximate to the anode and
cathode, as shown in Mozgrin’s Figure 1. Pet. 15; Ex. 1002, 400–02 (“The
[plasma] discharge had an annular shape and was adjacent to the cathode.”).
In its Response, Zond opposes and advances two arguments. PO
Resp. 35–39. First, Zond counters that Mozgrin does not disclose
“a weakly-ionized plasma proximate to both the anode and the cathode
assembly.” Id. at 35–38 (emphasis added). As support, Dr. Hartsough
testifies that a point on the z-axis of the shaped-electrode system, where
Mozgrin measured the density of the plasma, “can either be close to the
cathode [] or the anode [], but not both.” Ex. 2005 ¶ 84 (emphasis added).
Upon review of the record before us, we are not persuaded by Zond’s
argument and expert testimony. Rather, we determine that Gillette’s
contentions are supported by a preponderance of the evidence.
As an initial matter, we note that, notwithstanding the claim term
“proximate” is a relative term, Zond does not allege that the Specification of
the ’773 patent sets forth a special definition for the term. PO Resp. 35–39.
Nor does Zond explain how one of ordinary skill in the art, reading the
Specification, would have ascertained, with reasonable certainty, the
required distance between the plasma and the anode/cathode in order for the
plasma to be “proximate to the anode and the cathode assembly.” Id.
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Nonetheless, Zond’s expert, Dr. Hartsough, testified during his
cross-examination that the plasma formed in region 245—within the gap
between anode 238 and cathode assembly 216, as shown in Figure 5B of the
’773 patent—is proximate to both anode 238 and cathode assembly 216.
Ex. 1025, 120:4–8.
Figure 5B of the ’773 patent is reproduced below with green
annotations added.

As shown in the annotated Figure 5B of the ’773 patent, a plasma is
generated in region 245 within the gap between anode 238 and cathode
assembly 216. According the Specification of the ’773 patent, the width of
that gap is between approximately 3 to 100 mm. Ex. 1001, 10:23–24.
We observe that Mozgrin similarly discloses that the plasma discharge
volume is generated between the electrodes (the anode and the cathode
assembly), and that the gap between the electrodes is about 10 mm—falling
squarely within the range of 3–100 mm, disclosed in the ’773 patent
(Ex. 1001, 10:23–24). Ex. 1002, 401. Therefore, one of ordinary skill in the
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art would have recognized that Mozgrin’s plasma is generated proximate to
both the anode and the cathode assembly.
We are not persuaded by Zond’s argument and supporting expert
testimony that Mozgrin’s plasma is not close to both the anode and the
cathode assembly because the plasma is at the center of the hollow, shaped
electrodes “where the diameters of the anode and cathode are their largest”
(PO Resp. 35–39; Ex. 2005 ¶ 84). This argument is predicated improperly
on the notion that Mozgrin’s plasma is generated only at a single point,
contrary to the understanding of a person with ordinary skill in the art
regarding plasma and the explicit disclosure of Mozgrin (Ex. 1002, 401).
Notably, as Zond’s expert, Dr. Hartsough, testified during his
cross-examination, a “plasma exists over a volume of space, and so plasma
isn’t at a point.” Ex. 1025, 121:10–13 (emphases added). More
importantly, Mozgrin explicitly discloses that its plasma is a discharge
volume, generating between the anode and cathode. Ex. 1002, 401.
Nothing in Mozgrin’s disclosure indicates that the plasma is generated
only at a single point or only at the z-axis, as alleged by Zond. Even if
Mozgrin’s plasma is generated only at the middle portion of the z-axis, Zond
does not explain with sufficient specificity as to why such plasma would not
be proximate to both electrodes. In fact, each of Mozgrin’s electrodes has a
diameter of 120 mm (i.e., a radius of 60 mm), and the distance between the
middle portion of the z-axis and both electrodes is approximately 60 mm
(Ex. 1002, 401)—again falling squarely within the range of 3–100 mm,
disclosed in the ’773 patent (Ex. 1001, 10:23–24). Based on the evidence
before us, we determine that Mozgrin discloses an ionization source that
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generates a weakly-ionized plasma proximate to both the anode and the
cathode assembly, as recited in claims 1 and 34.
Second, Zond argues that Mozgrin does not disclose a “feed gas,” as
required by claims 1 and 34, because Mozgrin does not disclose “generating
a weakly-ionized plasma from a flowing feed gas.” PO Resp. 39; Ex. 2005
¶ 87 (emphasis added). Zond’s argument, however, is not commensurate
with the scope of the claims. See In re Self, 671 F.2d 1344, 1348 (CCPA
1982) (stating that limitations not appearing in the claims cannot be relied
upon for patentability). Each of claims 1 and 34 recites “a feed gas,” and not
“a flowing feed gas,” as alleged by Zond. See Ex. 1001, 21:12–13, 23:14–
15. The claim term “a feed gas” does not require a constant flow of gas,
because the term does not imply necessarily the flow of gas. Construing the
claim term “a feed gas” as “a flowing feed gas,” as argued by Zond, would
import a limitation improperly from the Specification into the claims. See
Van Geuns, 988 F.2d at 1184.
In any event, even if the claims at issue here were to require such a
limitation, we observe that the combination of Mozgrin and Fortov would
render the claimed subject matter recited in the limitation obvious. As
Gillette points out, Mozgrin discloses generating “high-current [plasma]
discharge in wide ranges of discharge current (from 5 A to 1.8 kA) and
operating pressure (from 10
-3
to 10 torr) using various gases (Ar, N2, SF6,
He, and H2).” Pet. 15; Ex. 1002, 402. Mr. DeVito testifies during his
cross-examination that Mozgrin suggests using a constant flow of gas in
order to maintain a constant pressure during the plasma process and to yield
high deposition rates. Ex. 2010, 84:13–85:2.
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Zond’s allegation and expert testimony that using four needle valves
is an indication that Mozgrin’s feed gas is “a static gas” also is of no
moment. PO Resp. 39; Ex. 2005 ¶ 87. Dr. Bravman testifies that it was
well-known in the art at the time of the invention that needle valves provide
a continuous flow of gas. Ex. 1028 ¶ 48. As an example to support his
testimony, Dr. Bravman cites to Ehrenberg, a book published in 1981, which
states that “while still pumping, argon gas is allowed to enter the bell-jar
[chamber] through a needle valve. . . . This continuous flow method tends to
sweep away any impurities” (Ex. 1026, 81). Ex. 1028 ¶ 48.
We credit the testimony of Mr. DeVito (Ex. 2010, 84:13–85:2) and
Dr. Bravman (Ex. 1028 ¶ 48), as their explanations are consistent with the
prior art of record. Given the evidence before us, we are persuaded that one
of ordinary skill in the art at the time of the invention would have recognized
that Mozgrin’s system supplies a constant flow of feed gas into the chamber
during the plasma processing, and, therefore, Mozgrin’s feed gas need not be
a “static gas,” as alleged by Zond.
For the foregoing reasons, we are persuaded that Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin and Fortov discloses “an ionization source that generates a
weakly-ionized plasma from a feed gas proximate to the anode and the
cathode assembly,” as recited in independent claims 1 and 34.
Power supply
Claim 1 recites an ionization source for generating a weakly-ionized
plasma, as discussed above, and a power supply for generating a voltage
pulse to create a strongly-ionized plasma from the weakly-ionized plasma.
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Ex. 1001, 21:12–23. Claim 18 depends directly from claim 1, and further
recites “wherein the ionization source and the power supply comprise a
single power supply.” Id. at 22:12–14 (emphasis added).
Zond argues that Mozgrin discloses “two distinct power supplies: a
pulsed discharge supply unit and a system for pre-ionization,” rather than a
single power supply that generates both the weakly-ionized plasma and
strongly-ionized plasma, as required by claim 18. PO Resp. 52–53
(emphasis added). Zond’s argument, however, contradicts the explicit
disclosure of Mozgrin (Ex. 1002, 401, Fig. 2). Notably, Figure 2 of Mozgrin
(reproduced below) discloses a single discharge supply unit.

Figure 2 of Mozgrin illustrates that the discharge supply unit includes:
(1) a stationary discharge supply unit for generating a weakly-ionized
plasma at the pre-ionization stage; and (2) a high-voltage supply unit for
applying a voltage pulse, generating a strongly-ionized plasma from the
weakly-ionized plasma. Id. Moreover, Mozgrin explicitly states that
“Figure 2 presents a simplified scheme of the discharge supply system,” and
“[t]he supply unit involved a pulsed discharge supply unit and a system for
pre-ionization.” Id. As such, one of ordinary skill in the art would have
appreciated that the discharge supply unit is a single power supply,
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comprising an ionization source and a pulsed-power supply, as required by
claim 18.
Ionization source comprises an electrode
Claim 10 depends directly from claim 1, and further recites “wherein
the ionization source is . . . comprising an electrode coupled to a DC power
supply.” Ex. 1001, 21:52–57 (emphasis added). Gillette takes the position
that Mozgrin discloses this limitation because Mozgrin indicates that its
pre-ionization system includes a DC power supply, and that the anode and
cathode constitute a pair of electrodes. Pet. 22; Ex. 1002, 401, Figs. 1–3.
Zond disagrees, arguing Mozgrin does not teach a separate and
distinct electrode, as required by claim 10, in that the “electrode” must be “a
component other than the cathode assembly or the anode that are recited in
claim 1.” PO Resp. 43–45. According to Zond, the Specification of ’773
patent confirms this proposed construction of the claim term “electrode,” as
it indicates that the cathode assembly, the anode, and the electrode are three
distinct components. Id. (citing Ex. 1001, 20:14–22).
We are not persuaded by Zond’s arguments, as the Specification also
discloses several other embodiments that do not include three separate and
distinct components for these elements. See, e.g., Ex. 1001, 8:19–23, Fig. 4.
Zond does not explain sufficiently why the claims at issue here are limited to
one particular embodiment, excluding all other embodiments. Nor does
Zond point out with particularity where the claim language imposes such a
requirement.
We are mindful that, “[w]here a claim lists elements separately, clear
implication of the claim language is that those elements are distinct
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components of the patented invention.” Becton, Dickinson & Co. v. Typco
Healthcare Group, LP, 616 F.3d 1249, 1254 (Fed. Cir. 2010) (holding that
the spring means is a separate element from the hinged arm because “[t]here
is no suggestion that the hinged arm or its hinges can function as springs”);
see also CAE Screenplates, Inc. v. Heinrich Fiedler GmbH & Co., 224 F.3d
1308, 1317 (Fed. Cir. 2000) (“In the absence of any evidence to the contrary,
we must presume that the use of . . . different terms in the claims connotes
different meanings.”).
That being said, the Federal Circuit also states that a claim element
should not be construed narrowly to require a separate and distinct
component, when the claim or specification indicates that the claim element
need not be a separate component, or the specification suggests that a single
component can function as both elements. Linear Tech. Corp. v. ITC, 566
F.3d 1049, 1054–56 (Fed. Cir. 2009); see also Powell v. The Home Depot
U.S.A., Inc., 663 F.3d 1221, 1231–32 (Fed. Cir. 2011) (stating that because
“the specification teaches that the cutting box may also function as a ‘dust
collection structure’ to collect sawdust and wood chips generated during the
wood cutting process, . . . it does not suggest that the claim terms ‘cutting
box’ and ‘dust collection structure’ require separate structures”); Retractable
Techs., Inc. v. Becton, Dickinson & Co., 653 F.3d 1296, 1303 (Fed. Cir.
2011) (“The claims and the specifications indicate that the ‘needle holder’
and ‘retainer member’ need not be separately molded pieces.”); NTP, Inc. v.
Research in Motion, Ltd., 418 F.3d 1282, 1310 (Fed. Cir. 2005) (noting that
the asserted claim language did not support a limitation requiring that the
claimed “RF receiver” and “destination processor” be separate and distinct).
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Here, the evidence before us does not support Zond’s proposed
construction for the claim term “electrode” to require a separate component
from the cathode assembly or the anode. Nothing in the claim language or
Specification of the ’773 patent supports such a narrow construction. For
instance, unlike the claims in Becton, 616 F.3d at 1255, that require the
spring means to be “connected to” the hinged arm or to be “extend[ed]
between” the hinged arm and a mounting means, the claims at issue here
require no connection or relationship between the electrode and the cathode
assembly or between the electrode and the anode. In fact, the Specification
of the ’773 patent discloses several embodiments in which the ionization
source does not include a separate and distinct electrode, but rather the
electrode is part of the anode or cathode assembly. See, e.g., Ex. 1001,
8:19–23 (“In one embodiment, the DC power supply generates an initial
voltage of several kilovolts between the cathode assembly 216 and the anode
238 in order to generate and maintain the [weakly-ionized or] pre-ionized
plasma.”), Fig. 4.
We are cognizant that a patent owner may draft claims that are
directed to a particular embodiment. Here, nothing in the claim language
indicates Zond has elected to limit the claims at issue to a specific
embodiment. Rather, Zond’s claim drafting style indicates otherwise.
Notably, claim 1 lists an ionization source and a power supply as two
elements, and yet claim 18, which depends directly from claim 1, requires
these two elements to be a single component. See Ex. 1001, 22:12–14.
More significantly, adopting Zond’s proposed construction would
import a limitation improperly from a particular embodiment into the claims,
and exclude other disclosed embodiments. Deere & Co. v. Bush Hog, LLC,
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703 F.3d 1349, 1354 (Fed. Cir. 2012) (“One must not import limitations
from the specification that are not part of the claim.”); Thorner v. Sony
Computer Entm’t Am. L.L.C., 669 F.3d 1362, 1365 (Fed. Cir. 2012) (holding
that it is not enough that the only embodiment, or all of the embodiments,
contain a particular limitation to limit a claim to that particular limitation.).
For the reasons stated above and in light of the Specification, we decline to
adopt Zond’s proposed construction that requires the “electrode” to be a
separate and distinct component from the cathode assembly or the anode.
Having considered the prior art of record, we are persuaded that
Mozgrin discloses an ionization source that includes a DC power supply
coupled to an electrode, generating a weakly-ionized plasma from a feed gas
proximate to the anode and cathode, as required by claim 10. See Ex. 1002,
400–02, Figs. 1, 2. For the reasons stated above, we determine that Gillette
has demonstrated, by a preponderance of the evidence, that Mozgrin in
combination with Fortov teaches or suggests an ionization source that
comprises of “an electrode coupled to a DC power supply,” as recited in
claim 10.
Voltage pulse
Each of independent claims 1 and 34 recites:
a power supply that generates a voltage pulse between the
anode and the cathode assembly that creates a strongly ionized
plasma from the weakly-ionized plasma, an amplitude and a
rise time of the voltage pulse being chosen to increase a density
of ions in the strongly-ionized plasma enough to generate
sufficient thermal energy in the sputtering target to cause a
sputtering yield to be non-linearly related to a temperature of
the sputtering target.
Ex. 1001, 21:14–23, 23:17–25 (emphases added).
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In its Response, Zond argues that the combination of Mozgrin and
Fortov does not teach or suggest the aforementioned “voltage pulse”
limitation, as recited in claims 1 and 34. PO Resp. 39–42. In particular,
Zond alleges that Mozgrin does not disclose “any attempt to achieve a
sputtering yield to be non-linearly related to a temperature of the sputtering
target.” Id. at 41. Zond also contends that Fortov does not disclose “how to
generate sufficient target thermal energy to cause the sputtering yield to be
non-linear with target temperature.” Id. at 42; Ex. 2005 ¶¶ 91–92.
We are not persuaded by Zond’s arguments. Nonobviousness cannot
be established by attacking references individually where, as here, the
ground of unpatentability is based upon the teachings of a combination of
references. In re Keller, 642 F.2d 413, 426 (CCPA 1981). Rather, the test
for obviousness is whether the combination of references, taken as a whole,
would have suggested the patentees’ invention to a person having ordinary
skill in the art. In re Merck & Co., 800 F.2d 1091, 1097 (Fed. Cir. 1986).
As Gillette points out (Pet. 15–16), Mozgrin discloses applying a
voltage pulse that has a rise time 5–60 µs and durations of 1.5 ms, in
between the anode and cathode, to generate a strongly-ionized plasma from
a weakly-ionized plasma. Ex. 1002, 402 (“Part 1 in the voltage oscillogram
[as shown in Figure 3(b)] represents the voltage of the stationary discharge
(pre-ionization stage).”), 401 (“This initial density [of 10
9
–10
11
cm
-3
range]
was sufficient for plasma density to grow when the square voltage pulse was
applied to the gap.”), 409 (“The implementation of the high-current
magnetron discharge (regime 2) in sputtering . . . plasma density (exceeding
2 x 10
13
cm
-3
).”), Figs, 1, 3). Gillette directs our attention to the Declaration
of Mr. DeVito, who testifies that one of ordinary skill in the art reading
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Mozgrin “would have understood that controlling discharge parameters,
such as the current or the characteristics of the pulse (e.g., duration,
amplitude and rise time), could have been performed to cause the plasma to
remain in the region 2 that is useful for sputtering.” Pet. 17–18; Ex. 1005
¶ 117 (citing Ex. 1002, 403–04, Figs. 5a, 7). Furthermore, Zond’s expert
witness, Dr. Hartsough, confirms that Mozgrin delivers a voltage pulse,
which has parameters, such as amplitude, rise time, and pulse width, to the
weakly-ionized plasma, for increasing the plasma density. Ex. 1025, 77:20–
79:6. Indeed, Mozgrin selects the pulse characteristics with the goal of
increasing the plasma density. Ex. 1002, 400–01.
Gillette also relies upon Fortov to disclose a non-linear relationship
between the sputtering yield and the temperature of the target (Cu (copper)
in argon plasma). Pet. 16–19 (citing Ex. 1004, 9, 16, Pic. VI.1.315).
Fortov’s Formula 10.7 is reproduced below:

Ex. 1004, 16. Fortov discloses that, based on Formula 10.7, the sputtering
yield Y “increases with the increase of target temperature T0, meanwhile, the
relation Y(T0) has an exponential character which explains the thermal
dependence of the sputtering yield (see pic. VI.1.315).” Ex. 1004, 16,
Pic. VI.1.315 (reproduced previously). The Specification of the ’773 patent
also uses the same formula to establish that, when the sputtering target
temperature reaches a sufficiently high temperature (T0), the sputtering yield
increases at a non-linear rate. Ex. 1001, 18:64–19:18.
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Both Fortov and Mozgrin describe the use of a copper cathode in
argon plasma as a suitable system for sputtering. Ex. 1004, 9, 16,
Pic. VI.1.315; Ex. 1002, 406, Table 1. Mr. DeVito testifies that one of
ordinary skill in the art would have been motivated to combine the teachings
of Mozgrin and Fortov, because “[a]pplying the teaching of Fortov to
Mozgrin would be to use known processes to achieve Fortov’s predictable
result of greater sputtering yield.” Ex. 1005 ¶ 122.
Given the evidence before us, we are persuaded that the combination
of Mozgrin and Fortov teaches the aforementioned “voltage pulse”
limitation of claims 1 and 34.
Rationale to combine
In its Response, Zond further argues that it would not have been
obvious to combine Mozgrin with Fortov to achieve the claimed invention
with a reasonable expectation of success. PO Resp. 24–26, 42. Specifically,
Zond alleges that Gillette failed to provide any evidence that the
contradictory teachings of Mozgrin and Fortov regarding when sputtering
occurs would have led an artisan to achieve the particular sputtering yield
required by the claims. Id. at 24–26. According to Zond, Fortov discloses
sputtering over a large range of plasma densities, whereas “Mozgrin’s
voltage pulse creates a direct transition from a weakly-ionized plasma to
Mozgrin’s regime 3,” which produces no sputtering of the cathode. Id.
We are not persuaded by Zond’s arguments, as they narrowly focus on
Mozgrin’s regime 3, and fail to consider Mozgrin’s regime 2 that is
dedicated to sputtering. It is well-settled that, when evaluating claims for
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obviousness, “the prior art as a whole must be considered.” In re Hedges,
783 F.2d 1038, 1041 (Fed. Cir. 1986).
As Gillette points out (Pet. 13–14), Mozgrin explicitly states that, in
regime 2, the voltage pulse that generates a strongly-ionized plasma from the
weakly-ionized plasma is appropriate for sputtering. Ex. 1002, 402, 406,
409 (“The implementation of the high-current magnetron discharge (regime
2) in sputtering . . . provides an enhancement in . . . plasma density
(exceeding 2 x 10
13
cm
-3
).”), Figs. 1, 3). Mozgrin also discloses specific
process parameter ranges that are more efficient for sputtering in regime 2.
Id. Therefore, contrary to Zond’s assertion that Mozgrin’s voltage pulse
creates a direct transition to regime 3, one of ordinary skill in the art reading
Mozgrin would have been able to select the pulse characteristics and
parameter ranges to generate a strongly-ionized plasma in regime 2 that is
dedicated to sputtering. Upon consideration of Mozgrin and Fortov, as a
whole, we do not share Zond’s view that there are contradictory teachings
between Mozgrin and Fortov that would dissuade one of ordinary skill in the
art from combining the prior art teachings to achieve Fortov’s non-linear
increase in sputtering yield.
As noted above, Mr. DeVito testifies that one of ordinary skill in the
art would have been motivated to combine the teachings of Mozgrin and
Fortov, because “[a]pplying the teaching of Fortov to Mozgrin would be to
use known processes to achieve Fortov’s predictable result of greater
sputtering yield.” Ex. 1005 ¶ 122. More specifically, Mr. DeVito explains
that it would have been obvious to apply a voltage pulse to generate a
strongly-ionized plasma from the weakly-ionized plasma in Mozgrin,
increasing “the density of ions in the strongly-ionized plasma to generate
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sufficient thermal energy in the sputtering target [so as] to increase the
sputtering yield to a point where ‘it starts to grow rapidly in a non-linear
way with the growth of temperature,’ as taught by Fortov.” Ex. 1005
¶¶ 120–22. Zond’s expert, Dr. Hartsough, confirms that a person having
ordinary skill in the art would have been motivated to increase sputtering
yield in a sputtering process. Ex. 1025, 53:13–17. The Admitted Prior Art
(Ex. 1001, 1:5–2:4, 2:47–5:60) indicates that “increasing the sputtering yield
typically will increase the deposition rate,” and, at the time of the invention,
“[s]puttering systems are generally calibrated to determine the deposition
rate under certain operating conditions.” Id. at 2:57–58, 4:48–49. Upon
consideration of the evidence in this record, we credit Mr. DeVito’s
testimony (Ex. 1005 ¶¶ 120–22) as it is consistent with the prior art of
record.
For the reasons stated above, we determine that Gillette has
demonstrated, by a preponderance of the evidence, that combining the
technical disclosures of Mozgrin and Fortov is merely a predictable use of
prior art elements according to their established functions—an obvious
improvement. See KSR, 550 U.S. at 417 (“[I]f a technique has been used to
improve one device, and a person of ordinary skill in the art would recognize
that it would improve similar devices in the same way, using the technique is
obvious unless its actual application is beyond his or her skill.”). Therefore,
we are persuaded that Gillette has articulated a reason with rational
underpinning as to why a person having ordinary skill in the art at the time
of the invention would have found it obvious to combine the teachings of
Mozgrin and Fortov.
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For the foregoing reasons, we are persuaded that Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin and Fortov would render obvious the aforementioned “voltage
pulse” limitation, as recited in claims 1 and 34.
Increasing an ionization rate and generating a substantially uniform plasma
In its Response, Zond further argues that the combination of Mozgrin
and Fortov does not teach that “a rise time of the voltage pulse is chosen to
increase an ionization rate of the strongly-ionized plasma,” as recited in
claim 11, and that “a distance between the anode and the cathode assembly
is chosen to increase an ionization rate of strongly-ionized plasma,” as
recited in claim 14. PO Resp. 45–47, 50–51 (emphases added). Zond also
contends that the combination of prior art references does not teach that a
“strongly-ionized plasma is substantially uniform proximate to the cathode
assembly,” as recited in claim 13. Id. at 47–49 (emphasis added).
We are not persuaded by Zond’s arguments and supporting expert
testimony. An obviousness analysis is not an ipsissimis verbis test. See In
re Gleave, 560 F.3d 1331, 1334 (Fed. Cir. 2009). Rather, a prima facie case
of obviousness is established when the prior art itself would appear to have
suggested the claimed subject matter to one of ordinary skill in the art. In re
Rinehart, 531 F.2d 1048, 1051 (CCPA 1976).
As Gillette points out, Mozgrin discloses using a magnetron plasma
system that has a gap (about 10 mm) between the cathode and anode,
applying a voltage pulse with a rise time of 5–60 µs, to generate a
strongly-ionized plasma from a weakly-ionized plasma. Pet. 22, 24;
Ex. 1002, 401, Fig. 1. As shown in Figure 3 of Mozgrin, when the voltage
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pulse applies to the gap, the plasma density, at this stage, grows and reaches
its quasi-stationary value (Parts 2a and 2b). Ex. 1002, 402, Fig. 3.
According to Gillette, Mozgrin teaches that, in regime 2, the
strongly-ionized plasma is substantially uniform proximate to the cathode
assembly because Mozgrin indicates that “the discharge expands over a
considerably large area of the cathode surface than it occupied in the
stationary pre-ionization regime.” Pet. 23; Ex. 1002, 403–04.
Zond’s expert, Dr. Hartsough, confirms that a quick increase in the
plasma density indicates an increase in the ionization rate. Ex. 1031, 88:21–
89:6. Mr. DeVito testifies that “[o]ne skilled in the art would have known
how to adjust the distance between the anode and the cathode to achieve a
desired ionization rate.” Ex. 1005 ¶ 132. Dr. Bravman also testifies that a
person of ordinary skill in the art would have appreciated from the teachings
of Mozgrin that various experimental variables, such as rise time of a
voltage pulse and the distance between the anode and cathode, were chosen
for the purpose of achieving high ionization rate. Ex. 1028 ¶¶ 80–83, 113–
17. Based on the evidence before us, we credit the testimony of Mr. DeVito
and Dr. Bravman, as their testimony is consistent with the prior art of record.
For instance, Mozgrin states that, “[b]ecause of the need for greater
discharge power and plasma density, pulse or quasi-stationary regimes
appear to be of interest” and that “[t]he main purpose of this work was to
study experimentally a high-power non-contracted quasi-stationary
discharge in crossed fields of various geometry and to determine their
parameter ranges.” Ex. 1002, 400. Mozgrin also discloses that in
“[d]esigning the unit, [Mozgrin] took into account the dependencies which
had been obtained in [Kudryavtsev] of ionization relaxation on
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pre-ionization parameters, pressure, and pulse voltage amplitude” and,
“[t]hus, the supply unit was made providing square voltage and current pulse
with [rise] times (leading edge) of 5 – 60 µs.” Ex. 1002, 401. Kudryavtsev
explains that, in the initial stage, the number of atoms in the first excited
state increases rapidly for a relatively slow change in the electron density,
and “[t]he rate of ionization then increases with time,” achieving “several
orders of magnitude greater than the ionization rate during the initial stage.”
Ex. 1006, 31 (emphasis added). Kudryavtsev also explains that the
ionization occurs uniformly. Id. at 34.
We are not persuaded by Zond’s arguments that Mozgrin shows a
non-uniform discharge proximate to the cathode (PO Resp. 48–49).
Mozgrin discloses using magnetic field to distribute the plasma uniformly
(Ex. 1002, 401, Fig. 1), similar to the ’773 patent (Ex. 1001, 18:3–7). More
importantly, Mozgrin indicates that “the implementation of the high-current
magnetron discharge (regime 2) in sputtering or layer-deposition
technologies provides an enhancement in the flux of deposited materials and
plasma density (exceeding 2 x 10
13
cm
-3
),” enhancing the homogeneity of
deposited layers, which is an indication that the plasma is substantially
uniform. Ex. 1002, 409.
For the reasons stated above, we determine that Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin and Fortov teaches or suggests that “a rise time of the voltage pulse
is chosen to increase an ionization rate of the strongly-ionized plasma,” as
recited in claim 11, that “a distance between the anode and the cathode
assembly is chosen to increase an ionization rate of the strongly-ionized
plasma,” as recited in claim 14, and that “the strongly-ionized plasma is
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substantially uniform proximate to the cathode assembly,” as recited in
claim 13.
Conclusion
With respect to dependent claims 6, 8, 9, 15–17, 19, and 20, Zond
essentially relies upon the same arguments presented in connection with
independent claim 1. PO Resp. 14–26, 34–45. We addressed those
arguments above, and found them unavailing. Upon review of Gillette’s
contentions and supporting evidence and, for the foregoing reasons, we
conclude that Gillette has demonstrated, by a preponderance of the evidence,
that claims 1, 6, and 8–20 are unpatentable over the combination of Mozgrin
and Fortov.

D. Obviousness over Mozgrin, Fortov, and Kawamata
Gillette asserts that claim 5 is unpatentable under § 103(a) as obvious
over the combination of Mozgrin, Fortov, and Kawamata. Pet. 25–27.
Claim 5 depends directly from claim 1. For the reasons discussed above, we
are persuaded that the combination of Mozgrin and Fortov renders the
subject matter of claim 1 obvious. We address the parties’ contentions in
connection with the additional limitation recited in claim 5, in turn below,
after a brief summary of Kawamata.
Kawamata
Kawamata discloses a process for producing a thin film at a high
speed by sputtering. Ex. 1009, Abs., 1:5–8. In one embodiment, Kawamata
discloses a plasma sputtering apparatus that includes a quartz boat,
containing MgF2 granules as a source material (sputtering target) that is
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mounted on a cathode. Id. at 7:14–19. Cooling water flows on a lower face
of the cathode so the temperature of the cathode is held constant. Id. at
7:20–22. The cathode is supplied power by a power source, generating a
plasma. Id. at 7:34–36. The MgF2 granules are heated by the plasma, and
their temperature is maintained by a balance between plasma heating and
cooling via cooling water flowing on the lower face of cathode. Id. at 7:36–
40.
Average temperature of the sputtering target
Claim 5 recites “[t]he sputtering source of claim 1 wherein the
thermal energy generated in the sputtering target does not substantially
increase an average temperature of the sputtering target.” Ex. 1001, 21:34–
37 (emphasis added). Gillette asserts that the combination of Mozgrin,
Fortov, and Kawamata would render claim 5 obvious. Pet. 25–27.
Zond counters neither Mozgrin nor Kawamata mentions that cooling
is performed to the extent that the average temperature of the sputtering
target does not increase. PO Resp. 53–54. Zond argues that the
combination of Kawamata with Mozgrin and Fortov would increase the
average temperature of the sputtering target. Id. at 54–55. To support
Zond’s contention, Dr. Hartsough testifies that Kawamata teaches raising the
temperature of the target material to weaken interatomic bonds. Ex. 2005
¶ 121 (citing Ex. 1009, 4:4–9, 7:36–37).
Zond’s arguments and expert testimony, however, improperly conflate
the surface temperature of the target with the average temperature of the
target. The portion of Kawamata relied upon by Zond and Dr. Hartsough
discloses raising the surface temperature of the target. Ex. 1009, 3:3–11,
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3:62–63. In fact, Kawamata teaches maintaining the average temperature of
the target substantially constant by cooling the opposite side of the target
with water. Ex. 1009, Abs. (“Cooling water (8) for holding the temperature
of the magnetron cathode (5) constant flows against a lower face of the
magnetron cathode (5).” Emphases added).
Mr. DeVito testifies that “[o]ne way to increase only the surface
temperature of the target, while avoiding a substantial increase in the
average temperature of the target, is by cooling the target.” Ex. 1005 ¶ 138
(emphases added). We credit Mr. DeVito’s testimony as it is consistent with
Kawamata and other prior art of record. For instance, the Admitted Prior
Art discloses that, when ions in a plasma impact a surface of the target, the
impact generates heat at the target surface. Ex. 1001, 4:61–5:8, Fig. 2. The
Admitted Prior Art also discloses a known cathode cooling system for
transferring the heat away from the cathode assembly and target. Id.
As Gillette points out, Kawamata also discloses cooling the sputtering
target to balance the heat added by the plasma. Pet. 26; Ex. 1009, 7:20–22,
7:36–40, Fig. 1. Indeed, Kawamata discloses that the sputtering target was
“heated by the plasma with their temperature maintained by a balance
between plasma heating and cooling by cooling water 8 flowing on the
lower face of the magnetron cathode 5,” which holds the sputtering target.
Ex. 1009, 7:36–40. Kawamata explains that the cooling water “maintained
at 20 + 0.5
o
C was caused to flow on a lower face of the magnetron cathode 5
so that the temperature of the magnetron cathode 5 was held constant.” Id.
at 7:20–22, Fig. 1. Gillette also notes that Mozgrin cools the target on the
side that is opposite to where the plasma ions are bombarding the target
surface. Pet. 26; Ex. 1002, 401. Mr. DeVito testifies that one of ordinary
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skill in the art would have combined the teachings of Kawamata and
Mozgrin, as both recognize the need to cool the sputtering target to enhance
the sputtering rate. Ex. 1005 ¶¶ 141–42. Upon review of the evidence in
this record, we are persuaded by Mr. DeVito’s testimony that using
Kawamata’s temperature control in Mozgrin’s system would have been a
combination of old elements in which each element behaves as expected. Id.
Given the evidence before us, we determine that Gillette has
demonstrated sufficiently that combining the technical disclosures of
Mozgrin, Fortov, and Kawamata is merely a predicable use of prior art
elements according to their established functions—an obvious improvement.
See KSR, 550 U.S. at 417. Consequently, we are persuaded that the
combination of Mozgrin, Fortov, and Kawamata teaches “the thermal energy
generated in the sputtering target does not substantially increase an average
temperature of the sputtering target,” as recited in claim 5.
For the reasons stated above, we determine that Gillette has
demonstrated, by a preponderance of the evidence, that claim 5 is
unpatentable over Mozgrin, Fortov, and Kawamata.

E. Obviousness over Mozgrin, Fortov, and Lantsman
Gillette asserts that claims 3, 4, and 34–39 are unpatentable under
§ 103(a) as obvious over the combination of Mozgrin, Fortov, and
Lantsman. Pet. 41–45. Independent claim 34 recites all of the limitations
set forth in claim 1, and further adds a limitation. For the reasons discussed
above, we are persuaded that the combination of Mozgrin and Fortov
renders the subject matter of claim 1 obvious. We address the parties’
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contentions in connection with the additional limitations recited in claim 34
and dependent claims 3, 4, and 35–39, in turn below, after a brief summary
of Lantsman.
Lantsman
Lantsman discloses a plasma processing system. Ex. 1008, Abs. The
system is applicable to magnetron and non-magnetron sputtering and RF
sputtering systems. Id. at 1:6–8. Lantsman also discloses that “at the
beginning of processing . . . gas is introduced into the chamber” and “[w]hen
the plasma process is completed, the gas flow is stopped.” Id. at 3:10–13.
This is illustrated in Figure 6 of Lantsman reproduced below:

Figure 6 of Lantsman shows that the gas flow is initiated, and the gas
flow and pressure begin to ramp upwards toward normal processing levels
for the processing stage. Id. at 5:39–42. As also illustrated, gas continues
flowing during the entire processing stage. Id. at 5:30–58.
Gas flow controller
Claim 34 recites “a gas controller that controls a flow of the feed gas
to the strongly-ionized plasma to facilitate the creation of additional ions that
generate additional thermal energy in the sputtering target.” Ex. 1001,
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23:26–24:2 (emphasis added). Claim 3 depends directly from claim 1 and
further recites “a gas flow controller that controls a flow of the feed gas so
that the feed gas diffuses the strongly-ionized plasma.” Id. at 21:27–29
(emphases added). Claim 35 depends directly from claim 34 and also recites
a similar limitation. Id. at 24:3–5. Claim 4 depends from claim 3 and
further recites “wherein the feed gas allows additional power to be absorbed
by the strongly ionized plasma, thereby generating additional thermal energy
in the sputtering target.” Id. at 21:30–33 (emphasis added).
Gillette asserts that the combination of Mozgrin, Fortov, and
Lantsman would have rendered these “gas controller” limitations obvious.
Pet. 41–44. In its Response, Zond opposes and advances several arguments.
PO Resp. 26–30, 55–58.
First, Zond and its expert witness argue that Mozgrin does not
disclose a “feed gas,” but rather a “static gas.” Id.; Ex. 2005 ¶¶ 122–125.
This argument is essentially the same one Zond and its expert advanced with
respect to claim 1. We addressed this argument previously in our discussion
as to claim 1, and found it unavailing. In particular, the evidence before us
suggests that Mozgrin uses a constant flow of gas in order to maintain a
constant pressure during the plasma process and to yield high deposition
rates. See, e.g., Ex. 1002, 402; Ex. 2010, 84:13–85:2. Contrary to Zond’s
assertion and expert testimony that using four needle valves is an indication
that Mozgrin’s feed gas is “a static gas,” Dr. Bravman testifies that it was
well-known in the art at the time of the invention that needle valves provide
a continuous flow of gas. Ex. 1028 ¶ 48. Notably, Ehrenberg states that
“while still pumping, argon gas is allowed to enter the bell-jar [chamber]
through a needle valve. . . . This continuous flow method tends to sweep
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away any impurities.” Ex. 1026, 81. We credit the testimony of
Dr. Bravman over Zond’s expert testimony, as we find the explanations
proffered by Dr. Bravman to be more consistent with the prior art teachings
(see, e.g., Ex. 1026, 81). Yorkey v. Diab, 601 F.3d 1279, 1284 (Fed. Cir.
2010) (finding Board has discretion to give more weight to one item of
evidence over another “unless no reasonable trier of fact could have
done so”).
Second, Zond argues that “Lantsman is also silent with regard to
controlling the flow of feed gas with a controller to diffuse strongly
ionized-plasma.” PO Resp. 56; Ex. 2005 ¶ 124. As Dr. Bravman explains,
however, adding feed gas into the plasma chamber, where the
strongly-ionized plasma is generated, “will naturally diffuse and intermingle
with other gas particles within the plasma.” Ex. 1028 ¶ 106. Zond’s expert
witness, Dr. Hartsough, confirms that “if the feed gas diffuses, it
intermingles with the particles of the plasma, then that means . . . the plasma
density would be diffused.” Ex. 1025, 35:25–36:20.
Third, Zond and its expert argue that “Lantsman does not teach how
the flow of feed gas is controlled to allow additional power to be absorbed
by the strongly ionized plasma or to generate additional thermal energy in
the sputtering target.” PO Resp. 57; Ex. 2005 ¶ 128. An obviousness
analysis, however, is not an ipsissimis verbis test. See Gleave, 560 F.3d at
1334. As Gillette points out, it would have been obvious to continue adding
the feed gas in Mozgrin during the production of the strongly-ionized plasma
in light of Lantsman, which explains that the feed gas flows into the
chamber throughout the entire plasma process including the pre-ionization
and sputtering deposition phases. Pet. 42–43; Ex. 1005 ¶¶ 183–86;
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Ex. 1008, 2:48–51, 3:9–13, 4:32–38, 5:39–45, Fig. 6. Mr. DeVito testifies
that introducing the feed gas continuously during the production of the
strongly-ionized plasma increases the number of atoms that can be ionized,
and, thus, increasing the density of the strongly-ionized plasma. Ex. 1005
¶¶ 185–87. According to Mr. DeVito, “[t]his allows additional power to be
absorbed by the strongly-ionized plasma and, therefore, generates additional
thermal energy in the sputtering target, as required by claims 4 and 34.” Id.
We credit Mr. DeVito’s testimony, as it is consistent with the prior art of
record.
Finally, Zond argues that Lantsman does not provide any details as to
the configuration of a gas supply, and that Gillette fails “to provide
experimental data or other objective evidence indicating that a skill artisan
would have been motivated to combine Lantsman’s dual DC power supply
system with the pulsed power supply system of Mozgrin.” PO Resp. 26–30,
56–57; Ex. 2005 ¶¶ 71–72. Zond and its expert also contend that Gillette
does not take into consideration the substantial, fundamental differences
between Lantsman’s DC power system and Mozgrin’s system, and the
contradictory sputtering teachings of Mozgrin and Fortov. Id.
We previously addressed Zond’s arguments and expert testimony
regarding the combination of Mozgrin and Fortov in the discussion
concerning claim 1, and found them unpersuasive. Rather, we conclude that
Gillette has articulated a sufficient rationale to combine the teachings of
Mozgrin and Fortov.
As to combining Lantsman with Mozgrin and Fortov, we also are not
persuaded by Zond’s arguments and expert testimony, because they are
improperly predicated on bodily incorporating Lantsman’s entire system into
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Mozgrin’s system. “It is well-established that a determination of
obviousness based on teachings from multiple references does not require an
actual, physical substitution of elements.” In re Mouttet, 686 F.3d 1322,
1332 (Fed. Cir. 2012) (citing In re Etter, 756 F.2d 852, 859 (Fed. Cir. 1985)
(en banc) (noting that the criterion for obviousness is not whether the
references can be combined physically, but whether the claimed invention is
rendered obvious by the teachings of the prior art as a whole)). In that
regard, one with ordinary skill in the art is not compelled to follow blindly
the teaching of one prior art reference over the other without the exercise of
independent judgment. Lear Siegler, Inc. v. Aeroquip Corp., 733 F.2d 881,
889 (Fed. Cir. 1984); see also KSR, 550 U.S. at 420–21 (A person with
ordinary skill in the art is “a person of ordinary creativity, not an
automaton,” and “in many cases . . . will be able to fit the teachings of
multiple patents together like pieces of a puzzle.”).
Here, Gillette does not propose to combine Lantsman’s DC power
supply system with Mozgrin’s system. See Pet. 41–44. More importantly,
Gillette is not relying on Lantsman for disclosing a pulsed power supply, but
rather for teaching a continuous gas flow controller. Id.
As noted by Gillette, the use of a gas flow controller in a sputtering
plasma chamber was well-known in the art at the time of the invention, as
evidenced by Lantsman. Pet. 41–42; Ex. 1008, 3:9–13, 4:32–38, 5:39–45,
Fig. 6. Lantsman discloses a gas flow controller and explains that the feed
gas flows into the chamber throughout the entire plasma process including
the pre-ionization and sputtering deposition phases. Ex. 1008, 2:48–51, 3:9–
13, 4:32–38, 5:39–45, Fig. 6. In fact, the Admitted Prior Art discloses a
known magnetron plasma system that uses a gas valve for controlling the
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flow of the feed gas. Ex. 1001, 3:34–37, Fig. 1. Zond recognizes that
Mozgrin’s system uses needle valves to control the gas flow, and, as
explained by Ehrenberg, needle valves are known to provide continuous gas
flow during a plasma process. PO Resp. 55–56; Ex. 1026, 81.
We are persuaded that one of ordinary skill in the art, in light of
Lantsman, would have used a gas flow controller with Mozgrin’s system to
maintain a desired pressure in the chamber throughout the entire process,
and to maintain a continuous flow of gas in Mozgrin, which would diffuse
the strongly-ionized plasma and allow additional power to be absorbed by
the strongly-ionized plasma, as required by claims 3, 4, 34, and 35. As
discussed above, Mozgrin discloses generating a weakly-ionized plasma
from a feed gas proximate to the anode and cathode. Ex. 1002, 402. We
agree with Gillette that it would have been obvious to continue adding the
feed gas in Mozgrin during the production of the strongly-ionized plasma in
light of Lantsman. Pet. 42–43; Ex. 1005 ¶¶ 183–89; Ex. 1008, 2:48–51,
3:9–13, 4:32–38, 5:39–45, Fig. 6. Mr. DeVito testifies that it also was well-
known to supply feed gas during a sputtering process. Ex. 1005 ¶ 182.
Mr. DeVito further testifies that one of ordinary skill in the art would have
used Lantsman’s continuous gas flow controller within Mozgrin’s system so
as to maintain a desired pressure in the chamber, and that such continuous
flow of gas would diffuse the strongly-ionized plasma and allow additional
power to be absorbed by the strongly-ionized plasma. Id. ¶¶ 183–89. We
credit Mr. DeVito’s testimony (id. ¶¶ 182–89), as it is consistent with
Lantsman and other prior art of record.
Based on the evidence before us, we are persuaded that the use of
Lantsman’s continuous gas flow controller within Mozgrin’s system is an
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obvious combination of old elements with each performing the same
function it had been known to perform. See KSR, 550 U.S. at 417.
Consequently, we determine that Gillette has demonstrated, by a
preponderance of the evidence, that the combination of Mozgrin, Fortov, and
Lantsman teaches or suggests the “gas controller” limitations, as recited in
claims 3, 4, 34, and 35. Gillette also has articulated a reason with rational
underpinning why one of ordinary skill in the art would have combined the
teachings of Mozgrin, Fortov, and Lantsman.
Conclusion
Zond does not provide separate arguments with respect to dependent
claims 36–39. See PO Resp. 14–30, 34–45, 57–58. Upon review of
Gillette’s contentions and supporting evidence and, for the foregoing
reasons, we conclude that Gillette has demonstrated, by a preponderance of
the evidence, that claims 3, 4, 34, and 35, as well as claims 36–39 are
unpatentable over Mozgrin, Fortov, and Lantsman.

F. Obviousness over Mozgrin, Fortov, and Kudryavtsev
Gillette asserts that claim 7 is unpatentable under § 103(a) as obvious
over the combination Mozgrin, Fortov, and Kudryavtsev. Pet. 51– 55.
Claim 7 depends directly from claim 1, and further recites “the voltage pulse
generated between the anode and the cathode assembly excites atoms in the
weakly-ionized plasma and generates secondary electrons from the cathode
assembly, the secondary electrons ionizing the excited atoms, thereby
creating the strongly-ionized plasma.” Ex. 1001, 21:43–47.
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In its Response, Zond argues that Gillette fails to “provide any
objective evidence that a skilled artisan would have been motivated to
combine the cylindrical tube system without a magnet of Kudryavtsev with
the Mozgrin magnetron system.” PO Resp. 30–34 (citing Ex. 2005 ¶¶ 75–
77). In particular, Zond and its expert witness contend that Gillette does not
take into consideration the substantial, fundamental structural differences
between the systems of Mozgrin and Kudryavtsev—e.g., pressure, chamber
geometry, gap dimensions, and magnetic fields. Id. at 31–33; Ex. 2005
¶¶ 75–77. Zond also argues that Gillette fails to provide experimental data
or other objective evidence to show that Mozgrin’s system as modified
would produce the claimed result. Id. at 33–34 (citing Epistar v. Trs. of
Boston Univ., Case IPR2013-00298 (PTAB Nov. 15, 2013) (Paper 18)).
We are not persuaded by Zond’s arguments. Zond’s reliance on its
interpretation of Epistar, a non-precedential Board decision, is misplaced.
Zond’s arguments predicate on bodily incorporating Kudryavtsev’s entire
system into Mozgrin’s system. See Mouttet, 686 F.3d at 1332. Moreover,
Zond improperly attempts to tie Kudryavtsev’s model on plasma
characteristics to the particular dimensions and components of the apparatus
used in the experiments that support Kudryavtsev’s model. In fact,
Kudryavtsev expressly explains that “the effects studied in this work are
characteristic of ionization whenever a field is suddenly applied to a weakly
ionized gas.” Ex. 1006, 34 (emphasis added).
As discussed above, Mozgrin discloses applying a voltage pulse
between the cathode and anode in a magnetron plasma system to generate a
strongly-ionized plasma from a weakly-ionized plasma. Ex. 1002, 402, 409,
Fig. 3(b). Mr. DeVito testifies that one of ordinary skill in the art would
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have recognized that “secondary electrons are necessarily generated” in
Mozgrin’s plasma formed in regime 2 for sputtering, because it was known
that secondary electrons are released from the target “by the inelastic
collision of impacting ions to the target.” Ex. 1005 ¶¶ 208–09. Indeed, the
Admitted Prior Art explains that “secondary electrons . . . are produced by
ion bombardment of the target surface.” Ex. 1001, 1:34–36.
As Gillette notes, Kudryavtsev discloses the effect of secondary
electrons on the ionization of the excited atoms in a multiple-step ionization
process that generates a strongly-ionized plasma from a weakly-ionized
plasma using a voltage pulse. Pet. 52–55; Ex. 1006, Abs., Fig. 1.
Specifically, Kudryavtsev discloses a multi-step ionization plasma process,
exciting the ground state atoms to generate excited atoms, and then ionizing
the excited atoms. Ex. 1006, Abs., Figs. 1, 6.
Figure 1 of Kudryavtsev illustrates the atomic energy levels during the
slow and fast stages of ionization, and is reproduced below, with annotations
added by Gillette (Pet. 53):

As shown in annotated Figure 1 of Kudryavtsev, ionization occurs
with a “slow stage” (Figure 1a) followed by a “fast stage” (Figure 1b).
Figure 1a Figure 1b
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Ex. 1006, 31. During the initial slow stage, direct ionization provides a
significant contribution to the generation of plasma ions from the ground
state. Mr. DeVito explains that, once the density of excited atoms becomes
sufficiently high, the multi-step ionization, shown in Figure 1b of
Kudryavtsev as the fast stage, becomes the dominant ionization process.
Ex. 1005 ¶ 211. Kudryavtsev discloses that the ionization increases rapidly
once multi-step ionization becomes the dominant process. Ex. 1006, Abs.
(“It is shown that the electron density increases explosively in time due to
accumulation of atoms in the lowest excited states.”) (emphasis added).
Mr. DeVito also explains that Kudryavtsev discloses in Equation (1) that one
of the factors that leads to the increase in plasma density includes the
collision of excited atoms with secondary electrons. Ex. 1005 ¶ 212 (citing
Ex. 1006, 30, Fig. 1). We credit Mr. DeVito’s testimony (Ex. 1005 ¶¶ 211–
12), as it is consistent with Kudryavtsev’s disclosure.
Furthermore, Mr. DeVito testifies that a person having ordinary skill
in the art would have found it obvious to combine Mozgrin with
Kudryavtsev, as Mozgrin itself cites Kudryavtsev. Ex. 1005 ¶ 210. Indeed,
as Gillette notes, not only would a person having ordinary skill in the art
have combined Mozgrin with Kudryavtsev, Mozgrin explicitly states that in
“[d]esigning the unit, [Mozgrin’s authors] took into account the
dependencies which had been obtained in [Kudryavtsev] of ionization
relaxation on pre-ionization parameters, pressure, and pulse voltage
amplitude.” Pet. 54–55; Ex. 1002, 401. This illustrates that one with
ordinary skill in the art at the time of the invention was capable of applying
the teachings of Kudryavtsev to Mozgrin’s magnetron sputtering system
with a reasonable expectation of success. Moreover, Dr. Bravman explains
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that such an artisan would have known how to apply Kudryavtsev’s model
to Mozgrin’s system by making any necessary changes to accommodate the
differences through routine experimentation. Ex. 1028 ¶ 71. Based on the
evidence before us, we credit the testimony of Mr. DeVito and Dr. Bravman
(Ex. 1005 ¶ 210; Ex. 1028 ¶ 71) because their explanations are consistent
with the prior art of record.
For the reasons stated above, we are persuaded Gillette has
demonstrated, by a preponderance of the evidence, that the combination of
Mozgrin, Fortov, and Kudryavtsev discloses “the voltage pulse generated
between the anode and the cathode assembly excites atoms in the
weakly-ionized plasma and generates secondary electrons from the cathode
assembly, the secondary electrons ionizing the excited atoms, thereby
creating the strongly-ionized plasma,” as recited in claim 7. Gillette also has
articulated a reason with rational underpinning why one of ordinary skill in
the art would have combined the collective teachings of Mozgrin, Fortov,
and Kudryavtsev.
Accordingly, we determine that Gillette has demonstrated, by a
preponderance of the evidence, that claim 7 is unpatentable over Mozgrin,
Fortov, and Kudryavtsev.

G. Obviousness over the Combination of Mozgrin,
Fortov, Mozgrin Thesis, and Raizer
Gillette asserts that claim 2 is unpatentable under § 103(a) as obvious
over the combination of Mozgrin, Fortov, the Mozgrin Thesis, and Raizer.
Pet. 56–58.
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Printed Publication under 35 U.S.C. § 102
As an initial matter, we address the issue of whether the Mozgrin
Thesis is available as prior art under 35 U.S.C. § 102(b)
8
for purposes of this
Final Written Decision. The determination of whether a given reference
qualifies as a prior art “printed publication” involves a case-by-case inquiry
into the facts and circumstances surrounding the reference’s disclosure to
members of the public. In re Klopfenstein, 380 F.3d 1345, 1350 (Fed. Cir.
2004). “Because there are many ways in which a reference may be
disseminated to the interested public, ‘public accessibility’ has been called
the touchstone in determining whether a reference constitutes a ‘printed
publication’ bar under 35 U.S.C. § 102(b).” In re Hall, 781 F.2d 897, 898–
99 (Fed. Cir. 1986). To qualify as a prior art printed publication, the
reference must have been disseminated or otherwise made accessible to
persons interested and ordinarily skilled in the subject matter to which the
document relates prior to the critical date. Kyocera Wireless Corp. v. Int’l
Trade Comm’n, 545 F.3d 1340, 1350 (Fed. Cir. 2008).
Gillette asserts that the Mozgrin Thesis is a doctoral thesis at Moscow
Engineering Physics Institute, published in 1994, and, thus, it is prior art
under § 102(b). Pet. 3. To support its assertion, Gillette proffers a copy of
the catalog entry for the Mozgrin Thesis at the Russian State Library, and a
certified English-language translation thereof. Ex. 1014. Gillette also
alleges that the Mozgrin Thesis was cataloged by the Russian State Library

8
Paragraph (b) of 35 U.S.C. § 102 was replaced with newly designated
§ 102(a)(1) when § 3(b)(1) of AIA took effect on September 16, 2012.
Because the application that issued as the ’773 patent was filed before that
date, we refer to the pre-AIA version of § 102.
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either by the imprint date of 1994 or at least by 1995, as shown on the
catalog entry (“Catalog of Dissertations in Russian (since 1995)”).
Reply 15. Gillette further asserts that the Russian State Library is an
institution “by definition established to share the information that it houses
with any interested person.” Id. Mr. DeVito testifies that Mozgrin—an
article that was published in 1995 (Ex. 1002)—summarizes the research
presented in the Mozgrin Thesis, and contains figures created from the
photographs in the Mozgrin Thesis. Ex. 1005 ¶ 217.
In its Response, Zond counters that Gillette fails to demonstrate that
the Mozgrin Thesis is prior art under § 102. PO Resp. 58–60. Zond
contends that Gillette provides no evidence that the phrase “Imprint Moscow
1994” appearing on the catalog entry means that the Mozgrin Thesis was
cataloged on that particular date. Id.
Upon consideration of the evidence in the present record, we are
persuaded by Gillette’s contentions and supporting evidence. Although
evidence establishing a specific date of cataloging and shelving before the
critical date would have been desirable, it is not required in a public
accessibility determination. See Hall, 781 F.2d at 899. Here, the critical
date is November 14, 2002—the filing date of the application that issued as
the ’773 patent. Ex. 1001, at [22]. The certified English-language
translation of the catalog entry is reproduced below with green annotations
added (Ex. 1014, 1):
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As depicted above, the catalog entry shows that it is an entry from the
Russian State Library’s catalog of dissertations in Russian. Ex. 1014, 2. As
we determined previously in the Decision on Institution (Dec. 8–11), the
catalog entry shows a publication date of 1994 (“Imprint Moscow 1994”),
well before the critical date of November 14, 2002. Id.
Zond had the opportunity, during this trial, to object to evidence and
file a motion to exclude the evidence submitted by Gillette. Zond, however,
did not object under 37 C.F.R. § 42.64(b) to the admissibility of the catalog
entry or the Mozgrin Thesis. Notably, Zond does not challenge the
authenticity of these documents, nor allege that they constitute inadmissible
hearsay. Therefore, the information set forth in the catalog entry can be
relied upon by Gillette as evidence supporting its contention that the
Mozgrin Thesis was sufficiently accessible to the public before the critical
date and it is a printed publication within the meaning of § 102.
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Furthermore, Zond does not provide sufficient explanation or credible
evidence to rebut the information disclosed in the Russian State Library’s
catalog entry, including the 1994 publication date. For instance, Zond does
not explain why a library, such as the Russian State Library here, would take
more than seven years to catalog and index a thesis.
Zond further alleges that the Mozgrin Thesis was not sufficiently
accessible to be considered a printed publication under § 102. PO Resp. 59–
60. According to Zond, even if the thesis had been cataloged in a library in
Russia, Gillette “would not have demonstrated that [the thesis] could have
been obtained by any interested person outside of Russia or the countries
under Russia’s control.” Id. at 60.
Zond’s argument is misplaced, as it is predicated on the notion that
the availability of a cataloged thesis in Russia, a foreign country, does not
constitute sufficient accessibility to interested persons exercising reasonable
diligence. Zond does not cite, nor do we discern, any authority that requires
a cataloged thesis to be located physically in this country. Notably, the
Federal Circuit has rejected the argument that a cataloged thesis shelved at a
university library in Germany does not constitute sufficient accessibility to
those interested in the art exercising reasonable diligence. Hall, 781 F.2d at
899–900. The Federal Circuit also has held that an Australian patent
application—classified and laid open to public inspection by the Australian
Patent Office—was sufficiently accessible to interested persons to qualify as
a prior art printed publication under § 102. In re Wyer, 655 F.2d 221, 225–
26 (Fed. Cir. 1981). Zond does not proffer any specific explanation as to
why we should treat Russia differently than any other foreign country.
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Based on the evidence before us, we observe that the Mozgrin Thesis
was cataloged and indexed in a meaningful way, by the author’s name, the
title of the thesis (“High-Current Low-Pressure Quasi-Stationary Discharge
in a Magnetic Field”), and the subject matter of the thesis (“Plasma Physics
and Chemistry”). Ex. 1014. As such, the catalog entry demonstrates that the
Mozgrin Thesis was made available to interested persons by virtue of its title
and “Subject” characterization. Upon consideration of the facts before us,
we determine that the Russian State Library’s catalog entry is credible
evidence to establish that the Mozgrin Thesis was made sufficiently
accessible to the public interested in the art before the critical date of
November 14, 2002.
Based on the totality of the circumstances, we are persuaded that
Gillette has established, by a preponderance of the evidence, that the
Mozgrin Thesis is a printed publication under § 102.
Mozgrin Thesis
Mozgrin Thesis is directed to research undertaken to “study the
current-voltage characteristics and the regimes of existence of the high-
current quasi-stationary low-pressure discharge in magnetic fields of
different configurations” and “using a high-current discharge plasma to
generate dense plasma formations and intense flows of charged particles.”
Ex. 1015, 4. Mozgrin Thesis discusses the possibility of intensive cathode
sputtering and the creation of high density flows of sputtered material
particles. Id. at 5. In Mozgrin Thesis, high-power, low-pressure discharges
with homogeneous plasma structure are generated; however, the ability to
generate these high-power discharges is limited by the presence of different
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types of instabilities leading to the contraction of the discharge and the
transition to the arc regime. Id. at 25.
Mozgrin Thesis further discusses an experimental setup of a high-
current, quasi-stationary regime of low-pressure discharge in a magnetic
field by applying a square voltage pulse to a discharge gap. Id. at 59.
Figure 3.2(b) is reproduced below.

Figure 3.2 (b) illustrates a typical voltage oscillogram of quasi-stationary
discharge voltage. Id. at 62. In the voltage oscillogram of Figure 3.2(b),
part 1 illustrates the voltage of the stationary discharge (pre-ionization); part
2a illustrates the square voltage pulse application to the gap; part 2b
illustrates the plasma density growing and reaching its quasi-stationary
value; and part 3 represents the voltage attaining its quasi-stationary value.
Id. at 62–63. Each of the time divisions (x-axis) represents 50 µs/div and the
voltage divisions (y-axis) represents 180 V/div. Id. at 63.
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Raizer
Raizer, a text book, teaches how to calculate collision time for a
particular gas and pressure, specifically setting forth the calculation for
argon. Ex. 1012, 11, § 2.1.4, Table 2.1. Specifically, Raizer indicates the
collision frequency νm is proportional to the density (N) of the gas, or to its
pressure (p). Id. at 11. Table 2.1 illustrates for argon: νm / p = 5.3 x 10
9
s
-1

Torr
-1
. Id.
Quasi-static electric field
Claim 2 depends directly from claim 1, and further recites “wherein
an electric field between the anode and the cathode assembly comprises a
quasi-static electric field.” Ex. 1001, 21:24–26. The Specification of the
’773 patent defines the claim term “a quasi-static electric field” as “an
electric field that has a characteristic time of electric field variation that is
much greater than the collision time for electrons with neutral gas particles.”
Id. at 9:34–38.
Gillette asserts Mozgrin summarizes research presented in Mozgrin
Thesis. Pet. 56–57. Specifically, Gillette relies on details provided with
photographs in Mozgrin Thesis, that Mr. DeVito testifies were used to create
the figures in Mozgrin. Ex. 1005 ¶¶ 217–18. Gillette also cites to Raizer, a
reference cited in Mozgrin, as teaching how to calculate the collision time
for argon gas, used in Mozgrin. Pet. 57, Ex. 1012, 11, § 2.1.4.
Gillette contends that part 3, as shown in Figure 3.2 of Mozgrin
Thesis, lasts longer than 250 μs. Pet. 57–58. According to Mr. DeVito,
because 250 μs is much greater than 1.88 nanoseconds (the “collision time
for electrons and neutral gas particles,” as taught by Raizer (Ex. 1012, 11,
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§ 2.1.4)), the electric field of Mozgrin Thesis is quasi-static, as required by
claim 2. Pet. 57–58; Ex. 1005 ¶¶ 218, 220. Based on the record before us,
we are persuaded the combination of Mozgrin, Fortov, Mozgrin Thesis, and
Raizer teaches the aforementioned limitation recited in claim 2.
Gillette asserts that it would have been obvious for a person of
ordinary skill in the art to combine Mozgrin with Mozgrin Thesis (which is
more detailed), as both are written by the same author, address similar
subject matter, and describe the same research. Pet. 58. Mr. DeVito testifies
that a person of ordinary skill in the art reading Mozgrin would have looked
to Mozgrin Thesis to determine additional details not present in Mozgrin,
such as the division lines shown in Fig. 3.2. Ex. 1005 ¶ 220.
With respect to this ground of unpatentability, Zond essentially relies
upon the same arguments presented in connection with independent claim 1,
and its arguments that Mozgrin Thesis is not a prior art. PO Resp. 58–60.
We addressed those arguments in our analysis above, and found them
unavailing. Based on the evidence before us, we determine that Gillette has
demonstrated, by a preponderance of the evidence, that claim 2 is
unpatentable over Mozgrin, Fortov, Mozgrin Thesis, and Raizer.
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III. CONCLUSION
For the foregoing reasons, we conclude that Gillette has demonstrated,
by a preponderance of the evidence, that claims 1–20 and 34–39 of the ’773
patent are unpatentable based on the following grounds of unpatentability:
Claim(s) Basis References
1, 6, and 8–20 § 103 Mozgrin and Fortov
5 § 103 Mozgrin, Fortov, and Kawamata
3, 4, and 34–39 § 103 Mozgrin, Fortov, and Lantsman
7 § 103 Mozgrin, Fortov, and Kudryavtsev
2 § 103 Mozgrin, Fortov, Mozgrin Thesis, and Raizer

IV. ORDER
In consideration of the foregoing, it is
ORDERED that claims 1–20 and 34–39 of the ’773 patent are held
unpatentable; and
FURTHER ORDERED that, because this is a final written decision,
parties to the proceeding seeking judicial review of the decision must
comply with the notice and service requirements of 37 C.F.R. § 90.2.

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STEPHENS, Administrative Patent Judge, dissenting-in-part.
I respectfully disagree with the Majority’s determination that the
Mozgrin Thesis is prior art under 35 U.S.C. § 102(b). For a reference to
qualify as a printed publication within the meaning of § 102, “the reference
must have been sufficiently accessible to the public interested in the art,”
before the critical date. In re Cronyn, 890 F.2d 1158, 1160 (Fed. Cir. 1989)
(quoting Constant v. Adv. Micro–Devices, Inc., 848 F.2d 1560, 1568 (Fed.
Cir. 1988)).
Zond argues Gillette failed to show the Mozgrin Thesis was
disseminated or otherwise made available to interested persons as a printed
publication more than one year prior to the filing date of the ’773 patent.
Prelim. Resp. 55–57. Specifically, Zond argues the catalog entry does not
indicate the Mozgrin Thesis was available prior to the filing date of the ’773
patent. Id.
“Because there are many ways in which a reference may be
disseminated to the interested public, ‘public accessibility’ has been called
the touchstone in determining whether a reference constitutes a ‘printed
publication’ bar under 35 U.S.C. § 102(b).” In re Hall, 781 F.2d 897, 898–
99 (Fed. Cir. 1986).
I am not persuaded Gillette has shown the Mozgrin Thesis was
publicly accessible more than one year prior to the date of the application
for patent. Specifically, Gillette relies on a catalog entry from the Russian
State Library’s catalog of dissertations, which shows an “Imprint” of 1994.
Ex. 1014, 1. Gillette asserts the Russian Library is an institution established
to share information it houses with interested persons and the imprint date of
1994 and “Catalog of Dissertations in Russian (since 1995))” on the catalog
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entry as evidence the Mozgrin Thesis is prior art under 35 U.S.C. § 102.
Reply 15. However, nothing in the catalog entry speaks to the date on which
the Mozgrin Thesis was incorporated into the Russian State Library’s
catalog of dissertations, or even that the Russian State Library catalog of
dissertations existed at the time of invention. As our reviewing court has
stated, “[a]lthough ‘evidence establishing a specific date of cataloging’ was
not required in Hall, in that case we held that ‘competent evidence of the
general library practice’ of cataloging and shelving established that the
thesis became accessible prior to the critical date.” In re Lister, 583 F.3d
1307, 1316 (Fed. Cir. 2009) (vacating and remanding the Board of Patent
Appeals and Interferences’ decision that a prior art reference registered with
the U.S. Copyright Office and included in the Westlaw and Dialog databases
was publicly accessible for the purposes of 35 U.S.C. § 102(b)). Here,
neither the imprint date nor the labeling indicates the Mozgrin Thesis was
publicly accessible prior to the critical date. Further, Gillette “has not
identified any evidence of the general practice” of the Russian State Library
with regard to catalog updates. See id. at 1316–17. Therefore, absent any
evidence pertaining to when the Russian State Library received the Mozgrin
Thesis, when the publicly accessible catalog was available, and what the
general practices of the Russian State Library between receipt of a thesis and
subsequent incorporation into a publicly accessible catalog are, the
presumption the Mozgrin Thesis was publicly accessible more than one year
prior to the date of the application for patent is pure speculation. See id. at
1316.
Furthermore, I respectfully disagree Zond was required to object
under 37 C.F.R. § 42.64(b). Significantly, Zond does not contend that the
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Mozgrin Thesis is inadmissible under any Federal Rule of Evidence.
Instead, Zond argues the Mozgrin Thesis is not prior art under 35 U.S.C.
§ 102(b) because Gillette has not shown the Mozgrin Thesis was publicly
accessible –– a challenge to the sufficiency or weight to be given to the
Mozgrin Thesis. Such argument is not proper in a motion to exclude, which
is a challenge to the admissibility of evidence, not a challenge to sufficiency.
See Office Patent Trial Practice Guide, 77 Fed. Reg. 48,756, 48,767 (August
14, 2012) (stating that a motion to exclude may not be used to challenge the
sufficiency of the evidence to prove a particular fact).
Zond properly provided arguments in the preliminary response and
response asserting Gillette has not sufficiently demonstrated that the
Mozgrin Thesis is prior art under 35 U.S.C. § 102(b). Accordingly, I am not
persuaded Gillette has established sufficiently, that the Mozgrin Thesis is a
printed publication under 35 U.S.C. § 102(b). It follows, I am not persuaded
claim 2 is unpatentable under § 103(a) as obvious over the combination of
Mozgrin, Mozgrin Thesis, Fortov, and Raizer.

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For PETITIONER:
Gillette:
David Cavanaugh
david.cavanaugh@wilmerhale.com
Larissa B. Park
larissa.park@wilmerhale.com

Fujitsu:
David L. McCombs
david.mccombs.ipr@haynesboone.com
David M O’Dell
david.odell.ipr@haynesboone.com
Richard C. Kim
rckim@duanemorris.com

For PATENT OWNER:

Gregory J. Gonsalves
gonsalves@gonsalveslawfirm.com

Bruce J. Barker
bbarker@chsblaw.com

Tarek Fahmi
tarek.fahmi@ascendalaw.com